Vol 43, Issue 2 Features
Read this quarter’s Intermedia here
A: I was a hard working attorney here in the Netherlands at De Brauw Blackstone Westbroek, specialising in copyright and media law, and I also became professor of the same subjects at Utrecht University. I represented Google, among other corporate clients, and won almost all the cases we took on. I had no desire to move.
A: The funny story is that I was at a dinner party with friends and saying how pleased I was with combining corporate law and scholarship in copyright and media, but we saw that the Dutch Media Authority was looking for a new commissioner and I agreed that it is an important post – good functioning of the media is critical to the functioning of democracy. And then a few weeks later I got a call from a headhunter wanting to talk to me about this very job, which obviously I took.
“There are advantages to being totally focused on converged mass media, especially as we are also controlling access to infrastructure.”
A: Well I think we are effective because we focus on multimedia, not just broadcast, so we are responsible for ondemand audiovisual media, as well as licensing both public and commercial broadcasters. Furthermore we monitor pluralism in print, online and broadcast. In total that now means we have oversight of more than 600 media organisations and license and register their access to infrastructure, although we do not deal directly with infrastructure ourselves, as say Ofcom does in the UK, but we have strong cooperation with other agencies. As a monitor of the media markets, we also advise the government – for example, is enough difference of opinion being made – and warn about possible political pitfalls. So I think there are advantages to being totally focused on converged mass media, as our licence is a prerequisite for media companies seeking access to infrastructure and, where it adds value, we work closely with agencies such as our competition authority, ACM (Authority for Consumers & Markets).
A: Of course I have a good sense of how things work in media companies from my legal work. Sometimes we have to be stringent and apply penalties, but it’s also important that we help companies live within our media act and understand the difficulties they face. We want the media to be accessible, independent and to operate in a level playing field as much as possible within the framework of law, but one of the most interesting parts of our job is to overcome the challenges of legislation that is at least partially outdated and to make our oversight effective where we do not always have the means to impose legal tools such as fines.
A: A case in point is Netflix, which now operates in the Netherlands and so is under our supervision. We have had good conversations with their executives about the protection of children, although our law does not yet oblige them to take this step. We have been able to convince them that it is in their best interest to adapt to child protection standards in the Netherlands and they are now finding ways to live voluntarily with this. It’s a good example of how a regulator can be effective at what I call ‘future proofing’ even though the legislation is not yet future proof. You need intelligent ways of tackling oversight now, more than ever, and it was a topic I addressed in my inaugural professorial speech and am now able to do in practice.
A: Yes, this is a really big case taking up a lot of our time. Briefly, what we found was that NOS, a Dutch public broadcaster, was being a ‘servant’ to commercial interests, which is explicitly forbidden by our media act, by buying the rights to a summary of our premier league football matches from a company that is majority owned by Fox, which commercially exploits the matches. They revised the contract to avoid a potentially very large penalty. There are other issues too involving Fox and Dutch football that we are dealing with.
Another and horrible case, and again that is about child protection, and where we have imposed a big fine, is about pornographic material involving a rape that was made available on a commercial on-demand service.
A: It can be confusing as there is also a longstanding group called EPRA, the European Platform of Regulatory Authorities, which in fact discussed media regulation at its recent annual meeting in Bern, but it’s a much broader group than ERGA, which is a new high-level group only for the heads of EU member state media supervisory authorities. ERGA’s aim is to advise the European Commission and to act as a strong peer group – if you look at the media regulators in some Eastern European countries they do find it more difficult to act in an independent way, so we can help each other. Regulator independence is a particular concern of ERGA and we adopted a statement on it at our first meeting in 2014 and are now preparing an analysis that should be out by the end of the year.
A: For audiovisual, the language in the new single digital market strategy is pretty much the same as in a green paper from 2011 proposing to revise the AVMSD to be fully convergent for digital applications and the creation of value. What’s on the table though is also a revision of the European legislative framework and which direction it will take – a liberal, high threshold for regulation, which Neelie Kroes, the past digital commissioner, was steering towards, or a more extensive regulatory framework. There were widely divergent responses from various countries in the green paper, and it is too early to say which way the Commission is likely to go, but ERGA’s position is that no matter what direction, we want effective future proof rules as it will be hard for any of us to oversee rules otherwise. What we may see though is conformity with key issues such as child protection, which I note that everyone is happy to support, and more liberal policy in other areas to give more flexibility, as it’s always more difficult to shoot a moving target. That’s part of what we at the Dutch Media Authority put in our green paper response.
A: There are four I hope we can agree on. Child protection, of course; independence of opinion or freedom of expression – and ERGA has just issued a statement on this; accessibility of media, and not blocking things unnecessarily with paywalls; and pluralistic opinion. Then we can work out the best regulatory approaches, including self- and coregulation with industry as we did with Netflix.
“Without independent media authorities it will be very difficult to have independent media in Europe.”
A: Again there are four topics we are focusing on at present. One is what we call material jurisdiction, looking at convergence, which is obviously important as we need to determine what other parties should be involved in audiovisual regulation, such as internet service providers. Then there is country of origin and territorial jurisdiction, which is difficult because of the different perspectives of European nations, and especially where there are core values such as child protection involved, which itself is one of our key topics. But I would say that regulator independence is foremost in our priorities. Independence is not just a problem in countries such as Hungary, so we are trying to define it both in law and in practice as there are budget cuts that can threaten work anywhere – many EU media authorities have had cuts of as much as 25% – and so make it hard to apply a consistent standard of supervision. If a ministry does not give you the money to cover a certain topic, you become less independent. We are worried about this and we are aiming to put more in the AVMSD about securing independence both formally and in a practical way – at present there is one statement in the directive but it is not enough.
A: Copyright, which I cover in my academic role, is one – so called geo-blocking of content based on copyright is bad for the media consumer, and I think the Commission would benefit from a group like ERGA to advise on moving copyright forward. E-commerce is another area that crosses over with us and we need to look at whether there is already regulation there and in other areas that may mean we do not need new media law.
A: Yes – without independent media authorities free of political and business influences it will be very difficult to have independent media in Europe. The attack on Charlie Hebdo shows that the media have to be able to do their work and completely independent media authorities are key to supporting this. Freedom of expression is the backbone of any media authority and I am pleased that we at ERGA have now put out a strong statement on this. The freedom of expression statement and a scoping document on territorial jurisdiction are at bit.ly/1AI0Kzh
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